ETHICS OF ASSESSORSHIPS.

Evening Post, Volume LXVIII, Issue 48, 25 August 1904, Page 6

ETHICS OF ASSESSORSHIPS.

«, JUDOE-ADVOCATK OU ADVOCATEJUUUK? THE SYSTEM SWKKPINGLY' CONDEMNED. The judgment of the Supremo Court (Judges Denniston and Chapman) on the motion by the Corporation of Wellington for an order to lumovo from tho filo "a document purporting to bo an award of the Coinpenualioii Court lo hear and determine a clahn for compensation made by Allan Skcne and Fanny Charlotto Skeno against the Corporation," was delivered by Mr. Jutstico Denniston to-day. Tho case is one in which cou.sidciablo interest has been shown, on account of its impeachment of an assessor of tho Court, the Hon. T. Kennedy Macdonald,' who acted as assess or for the claimants, on the ground thut he wn» said to be pecuniarily interested in tho amount of the claim. In Iho course of tho judgment their Ilonoui.s point out that these was vety littlo dispute as lo the facts (which have been previously ropnitcd), and there wiis no want of candour in any of the witnesses examined. They point out, further, .thai while the Compensation Couit is generality governed and to he judged by tho rules and standards which apply to Courts in general, its construction must be looked at in considering the position and responsibilities of its members. Each assessor is chosen by a litigant pro hac vici. He represents only lii.s client of the moment and that client* interests, whfch are tho interests of his pocket, lie is selected, with very raie exceptions, for but one object — to obtain for such client, as tho case may be, tho highest or lowest amount possible. "To aaggest that the average assessor brings to liib tafk an open mind and a readiness to oe governed only by tho evidence is contrary to common knowledge and experience The last thing the average litigant looks for in his assessor is a judicial temperament, and as a rule it is the hull thing ho geUi. Tho result is in practice, as we all know, that an assessor is a partisan and an advocate rather than a judge. . . . The result ia that claimants' .assessors are sought for in tho ranks of experienced land agents and valuers — sanguino men with optimistic views, while a respondent selects his assessor with tho same motive, but from men of tho opposite quality. Tho vice is nob in the meu, but in tho system. It is 1 not easy to imagine a less satisfactory tribunal viewed as a judicial body. What is wanted, if the Court is not to bo ] composed entirely of men judicially j trained, is a tribunal where, if the assessors are not to fulfil only tho true function of assessors — lo inform and ad- J vise tho Court as experts — they should at least be selected, independently of tho j parties, from n. body of official experts. Such a Court — with perhaps the re- ! quirement of tho concurrence of tho .ludge in any. award— would be, if not an j ideal body, one which would at lenst sc- I euro a judicial tono and procedure." "In our opinion," continuo their Honours, " these considerations show that in a, body ho constituted the ligid mlcs operating in tho enso of ordinary Courts of Justice are not applicable. . .• . Bcal bios, therefore, caused by anything »hort \ of pecuniary int«rc#t in the subject matter of tho proceeding* cannot be treated as misconduct diuqualifying an o&ito&sor, or justifying Uio interference of this Court to set <isido an award. Tho fact that tho partner of an at»es.ior i* employed by that assessor's client to get up his case and to net as his agent, or to give evidence, however inadvisable and open lo miscoiwtruction such action may be considered, docs not, even in the awoflsor knows llmt tho moneys ptud for theso services are to go into the partnership account, give tho assessor a pecuniary intcrost in tbe subject matter of dinpule so as to bring him within Mio rule laid down by Lord Blackburn. That fact does not give Uie assessor a direct interest in tho result. Tho sugge*.fci»d possibility that tho generosity of tho client will bo proportionate to tho amount of tho awards is too fanciful to haw any weight. Any objection oil this ground is, however, difiposod of by the fact that the position of Mr. Macdomild and his partner was known by, and was apparent to tho Corporation's advisers. That i« admitted by tho affidavit of Mr. Martin, and is shown by tho knowledge that tho same courso of conduct in previous cases betweon tho «amo parties was followed without objection. it may bo that there was no actual knowledge that tho fees for the M-ork done by Mr. Wilson wero going into tho partnership funds. But when a litigant's advisers see ono partner sitting as thoir opponont'* assessor untl his purtuor managing that opponent's case, tiio subject matter being one of the class in which tho partnership does business, and makes no enquiry and no objection, it would he idle to say that each litigant can say that tho proof that the businebs Was partnership business would entitle them, ivfter taking tho chance of a favourable award, to claim to set asido ono deemed unfavourable." As to tho point raised regarding the oath tnken by Mr. Macdonald in his capacity aa an assessor, the Judges said thai tho only justification, for tho very obvious inuendo contained heto Was tho suggestion thut Mr. Macdonald at the sime of making it knew that lie was interested, and' made tho declaration knowing it to be false. Yet neither the notice or tho affidavit contained averment of such knowledge, and tho Court saw no reason to doubt tho statement , of Air. -Macdonald and Mr. Wilson .that the former knew nothing of Iho arrangement for commission. The' Court thought, however, that so long at least as it appeared that there was ft possibility of such knowledge it was against tho policy of tho law to allow its ovidenco to bo questioned. Their Honours concluded that if this had been a motion lo set asido an award made by a Compensation Court in tuo ordinary course, and which it was proposed to enforce against wn unwilling party ; had it boon, in fact, other than in merely a technical sense tho act o-f tho .Court, they would havo no aitc-rnatoMce but to give tho relief ask* ed, however satisfied they might be that tho award was not, and uould not lmvd been affected by tho irregularity relied on. But Ibis was not such an a waul. Tho Court had hopolcssiy disagreed, and as v matter of convenience, and to obtain an independent adjustment of costs and otlior questions it wob arranged, with the consent of tho President of the Court, that tho agreement should bo put in the form of an award by tho Court, and that tho costs of -Iho assessors' fees should be settled by tho Presidont. But is was not in fact tho judgmont of tho Court. The making of the award, which did not express the mmd of any member of tho Court, could not with any piopricty bo called a judicial proceeding. It was merely a ministerial act. Treating then the award o« merely » ministerial act executed at tho request of 'the parties to carry out thoir voluntary agreement, Uie right to avoid it at tho instance of ono of the other parties ntUßt bo testod by' the same standard nx would bo applied to a motion lo set aside the agreement on account erf the concealment of an essential fftofc. What tho Corporation was now asking ww . in effect a new hearing before a new Court — exactly what they entered into the agreement to avoid. Thoir Honours felt confident it could not bo vnlidly founded on the fact, nowhere supported hy asidance, that bite existence of

tho agreement for cummißsion would have prevented tlio coinpioinihe. Their Honours concluded : From, the authorities cited, coupled with a consideration of tl>o constitution of the Compensation Court, we think that tho following deductions may be drawn — That, notwithstanding tlio circumstance that two of tho members of tho Court ;iro appointed by parties to represent their respective pecuniary interests, the rules of law governing the conduct, of judicial persons are still, to some extent, applicable to them. That it mu.fl in principle be held that a person who, being appointed to such a position, cannot, as here, talc© <my direct, or indirect pecuniary intere«t in tho award to be pronounced, without infringing thwu rules «nd vitidting tho award, unless tho objection bo known to the party entitled to object, and waived by him. That whore, ius here, the award is merely an instrument used 'for t.ho convenience of Uio puvticM to express and enforce tho terms of nn agreement freely entered into by tlic-m, tho above stated principles «ro inapplicable. That the reason for this is that the defect i.s not one going to the root of the jurisdiction c\f the Court, but merely to its ability lo try the particiriur issuo and pronounce the award, that this defect is capable of being waived by the parties, and docs not arisfe where tho Court is not n.sked to try any issue or determine any question of fact or law. That, an award arrived at in this manner could only bo impeached upon considerations which would result iv a Court of F.quity Avoiding tho agreement, and that no ground in fact or law for impeaching it bus been suggested. The motion is dismissed, with £10 10s coots to Allan and Fannq Skone, and £10 10« to T. K. Mncdouald and A. L. Wilson.